I want to thank my friend and colleague George Paul for waking dormant brain cells that I thought Captain Jack had killed off long ago. George is a true scholar, and reading his new book, Foundations of Digital Evidence (ABA 2008), was a true cerebral workout.
Once you arm yourself with a couple of strong shots of expresso, sit down and enjoy George’s take on the authentication and admissibility of digital evidence. First, savor the foreward by Judge John M. Facciola, one of the judicial rock stars of electronic evidence. He calls Paul a revolutionary and I agree. Bookish Yalie though he is, he challenges the present system of admitting ESI with scant (or no) true authentication. As Facciola states, George makes us aware “of the reality that digital information, far from being inherently reliable, can be manipulated, corrupted and misused.” Facciola frets, rightfully, that George’s excellent analysis may not prevail because of “inertia,” the fact that federal courts try relatively few cases, the reality that we do not have a true trial bar skilled in the rules of evidence and the slowness of the rule-making process.
Other than the mental calisthenics that George put me through, I enjoyed this book as a bluntly new and scientific approach to authentication. In reality, I see electronic evidence admitted all the time without a peep from the other side, even where it seems that authentication might well be challenged. George provides a great gift in his book – whether you want to make sure you have authenticated something properly or whether you want to challenge the authentication of ESI, there is something in this book for you.
You may well read this book and reach for your Advil, because the truth is that it can be daunting to authenticate electronic evidence, especially when we have so little knowledge of the systems that produce ESI, how they work, how they may be subverted, how they may innocuously be changed, or simply be misinterpreted. Who is the true author of ESI? How does the hearsay doctrine play out in the digital world? The questions are endless.
Following George’s work, there are case studies written by expert contributors supporting George’s theses. In sum, the book is admittedly nonlinear, often philosophical, but oh, how much you can learn as a litigator if you keep your highlighter handy. Embedded in this book are true practical gems that you can put to use in your practice.
George, you always make me feel like the dime novel writer of yore. But I guess there’s a place for us both. Well done!
E-mail: snelson@senseient.com Phone: 703-359-0700
